The State Education Department
State Review Officer

No. 96-20

 

 

Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Carmel Central School District

Appearances:
Westchester/Putnam Legal Services, attorneys for petitioners, Jacqueline Rupert, Esq., of counsel

Raymond G. Kuntz, P.C., attorney for respondent, Wendy Klarsfeld Brandenburg, Esq., of counsel

 

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which upheld the recommendation by respondent's committee on special education (CSE) that petitioners' son be educated in a self-contained special education class for the fourth grade, during the 1994-95 school year. Having found that respondent offered the child an appropriate placement, the hearing officer denied petitioners' request for an order directing respondent to reimburse them for their expenditures for their son's tuition in the Eagle Hill School, a private school in which petitioners unilaterally enrolled the boy for the 1994-95 school year. The appeal must be dismissed.

        Petitioner's son entered kindergarten in respondent's Matthew Paterson Elementary School in 1990. He was described by his kindergarten teacher as being a quiet boy, who was reluctant to verbally participate in front of a group. The teacher reported that the boy had weak fine motor skills, and had difficulty learning the alphabet. She described the boy as being easily distracted. In February, 1991, the child was referred by his kindergarten teacher to the CSE. The CSE recommended that the child be classified as learning disabled, and that he receive resource room services on a daily basis, for the remainder of kindergarten. Petitioners accepted the CSE's recommendation.

        During the 1991-92 school year, the child received resource room services for three hours per week. The services were provided in a "cluster setting," i.e., both within and outside the child's first grade class. At the end of the first grade, the child's teacher reported that the boy had made progress because of the resource room support which he had received. She noted that his progress was not steady, and that he had struggled because of his inability to retain the skills which had been taught to him. His teacher reported that the child was weak in reading and mathematics, and would require resource room services in the second grade. In May, 1992, the child achieved a grade equivalent score of 1.2 in total reading, on the California Achievement Tests.

        While in the second grade during the 1992-93 school year, the child received five hours of resource room services per week, and extra assistance from a reading specialist. His second grade teacher reported that the child began the second grade with very limited academic skills, and that he was working well below grade level in all areas. She noted that the child's academic difficulties had induced extreme frustration in him. The child's second grade and resource room teachers met with petitioners to express their concerns about the child. Thereafter, the two teachers reportedly modified their expectations for the child, in order to better accommodate his needs. The second grade teacher reported that the child's frustration decreased over time, and that he became more communicative and had a more positive attitude.

        In October, 1992, the child was evaluated by, Dr. Popper, a private psychologist. He reported that the child had achieved standard age scores of 114 in verbal reasoning, 71 in abstract/visual reasoning, and 86 in short-term memory, which resulted in a composite score of 91 on the Stanford-Binet Test. Dr. Popper opined that the child was probably functioning in the average to above average range of intelligence. He noted that the child relied heavily upon his language skills to solve problems, and identified the child's abstract/visual reasoning ability as an area of particular weakness. He also noted that the child had difficulty in accurately pointing to specific letters on a page when responding to questions, and suggested that the child evidenced signs of visual-perceptual deficits. Dr. Popper recommended that the child receive a comprehensive visual examination involving more than simple visual acuity. He reported that the child had great deal of difficulty with his visual short-term memory. On the Woodcock Johnson Test of Achievement, the boy received standard scores of 92 (grade equivalent of 1.5) in letter-word identification, 84 (grade equivalent of 1.2) in passage comprehension, 96 (grade equivalent of 1.9) in word attack, 92 (grade equivalent of 1.7) in reading vocabulary and 87 (grade equivalent of 1.3) in broad reading. It should be noted that at the hearing in the proceeding, Dr. Popper testified that some of the child's standard scores were incorrectly transcribed. He testified that he should have reported standard scores of 100 in word attack, and 95 in reading vocabulary.

        Dr. Popper reported that the child knew the basic consonant vowel sounds, as well as some blends, but had not mastered vowel and consonant digraphs and dipthongs. He also noted that the child had a limited sight vocabulary. He suggested that the child looked only at the beginning letter of each word in attempting to decode words, and that he looked at the middle of a printed line, rather than moving from left to right. He also reported that the child used picture clues when available, and had poor comprehension without picture clues.

        The child achieved standard scores of 85 (grade equivalent of 1.2) in mathematical calculation, 91 (grade equivalent of 1.5) in applied problems, 83 (grade equivalent of 1.4) in quantitative concepts, and 87 (grade equivalent of 1.3) in broad mathematics. At the hearing he testified that the child's standard score in quantitative concepts was in fact 89. Dr. Popper reported that the child had not mastered various mathematical concepts, as reflected in his inability to correctly determine operations on the calculations sub-test. The child achieved standard scores of 84 (grade equivalent of 1.4) in broad written language, and 80 (grade equivalent of 1.4) in basic writing skills. Dr. Popper noted that the child could not spell words which a part of his sight reading vocabulary. In addition to having poor word attack skills, the boy evidenced deficits in punctuation and usage.

        Dr. Popper recommended that the child remain in regular education classes, with resource room assistance. He also recommended that the child receive a complete neurological evaluation, as well as an eye examination. He suggested that the child also receive individual play therapy to address some potential psychological problems, and gave several suggestions for instructional techniques to be used with the child.

        In December, 1992, the boy was examined by an ophthalmologist, who reported that the child had 20/20 visual acuity in each eye, but had a convergence insufficiency. As a result, the child had difficulty bringing his eyes together to focus on a page of printed material and using his eyes to scan. He opined that the child's convergence insufficiency could be addressed with a combination of passive and active therapy, including eye exercises and the use of glasses with built-in prisms.

        The child's second grade report card indicated that he struggled academically, but did apply himself. On a brief form of the Kaufman Test of Educational Achievement which was administered to the child in April, 1993, he achieved a grade equivalent total reading score of 2.1.

        On April 30, 1993, respondent's CSE prepared the child's individualized education program (IEP) for the 1993-94 school year. The boy's IEP indicated that in April, 1991, he had achieved a verbal IQ score of 130, a performance IQ score of 99, and a full scale IQ of 116. However, he was described as having a very limited sight vocabulary, and being very unsure of himself in most reading, writing, and spelling situations. As a result of a weak memory, the child reportedly forgot or confused material easily. The IEP also indicated that the child needed to be monitored for "task behaviors." The CSE recommended that the child no longer received primary instruction in a regular education classroom, and be enrolled in a special education class with a 15:1 child to adult ratio. However, the CSE recommended that the mainstreaming of the child for "special" subjects be explored. At the annual review petitioners requested that the CSE recommend a summer program for the child. They agreed that they would provide respondent with supporting data for their request. However, the CSE subsequently did not accede to their request. Petitioners enrolled the child, at their expense, in the Eagle Hill School, for the Summer of 1993.

        In May, 1993, the child took the California Achievement Test again. He achieved grade equivalent scores of K.9 in vocabulary, 1.6 in comprehension, K.6 in spelling, 2.2 in language mechanics, 1.2 in language expression, 2.3 in mathematical computation, and 2.2 in mathematical concepts.

        The child was enrolled in a combined second and third grade special education class in the Matthew Paterson Elementary School for the 1993-94 school year. The child's teacher testified at the hearing in this proceeding that there were ten children in the class, and that she was assisted by an aide. She noted that she had employed a multisensory approach, using visual, auditory, and kinesthetic means to impart information to the child, because of his visual perception and memory deficits. The teacher used a basal reader, and "flexible phonics" to interrelate reading, writing, and spelling. She testified at the beginning of the school year that the boy was aware of, but could not integrate into writing, short vowels and consonant digraphs. The teacher further testified that by the end of the 1993-94 school year, the child had learned all of the first grade phonics, and could integrate them throughout the language arts curriculum. The boy's teacher also testified that he was initially very shy in class, and that she had addressed this problem by encouraging him to socialize and having him engage in cooperative learning projects with other students.

        In November, 1993, petitioners asked the CSE to reconvene for the purpose of recommending that the child be mainstreamed into regular education classes for science, social studies, and special subjects. On December 2, 1993, the CSE recommended that the child be mainstreamed for science, social studies, and art. The child's special education teacher indicated on the child's progress report for the second and third quarters of the 1993-94 school year that the child's mainstream teacher had reported that the child had difficulty with the concepts presented to him in class, and that he was reluctant to participate and ask questions in the regular education third grade class. In April, 1994, petitioners agreed with the special education teacher's recommendation that their son be removed from mainstreamed science and social studies. On April 21, 1994, the CSE revised the child's IEP to provide that he would be mainstreamed only for art for the remainder of the 1993-94 school year.

        Petitioners had the child re-evaluated by Dr. Popper, early in 1994. In his report, dated March 26, 1994, Dr. Popper indicated that the boy had achieved a verbal IQ score of 102, a performance IQ score of 100, and a full scale IQ score of 101. He reported that the child evidenced relative weakness in his alertness to detail and visual discrimination skills. Dr. Popper re-administered the Woodcock Johnson Test of Achievement to the child. He reported that the child achieved standard scores of 87 (grade equivalent of 2.6) in letter-word identification, 82 (grade equivalent of 2.2) in passage comprehension, 94 (grade equivalent of 2.6) in word attack, 90 (grade equivalent of 2.6) in reading vocabulary, and 83 (grade equivalent of 2.4) in broad reading. He also received standard scores of 85 (grade equivalent of 2.6) in basic mathematical skills, 110 (grade equivalent of 4.4) in mathematical reasoning, and 98 (grade equivalent of 3.6) in broad mathematics. For writing, the child achieved standard scores of 75 (grade equivalent of 1.8) in basic writing, 80 (grade equivalent of 2.4) in written expression, and 76 (grade equivalent of 1.7) in broad written language. Dr. Popper reported that the child continued to have difficulty with vowel and consonant digraphs, and that the child's poor sight word vocabulary and continued inability to follow a line of print from left to right were hindering his ability to comprehend what he had read. Dr. Popper also reported that the child could not reproduce words which were in his sight word or expressive vocabulary, and did not evidence knowledge of the most rudimentary rules of grammar, spelling, and punctuation. He described the child's written sentences as immature and stilted.

        Dr. Popper opined that there had been "a regression in some major areas" of the child's academic development, since his previous evaluation in 1992. He suggested that evidence of regression could be found not only in the child's achievement test scores, but also in his attitude about arithmetic and his lack of perseverance in completing difficult tasks during the evaluation. Noting that the child did not use the glasses which had been prescribed for him to read, Dr. Popper suggested that the child be re-evaluated by an ophthalmologist. He also recommended that the child's educational placement should be reviewed, based upon his belief that the child's academic program during the 1993-94 school year had not provided him with the educational experiences which he needed. He further recommended that the child be placed in a private school, and that he receive resource room services, specialized instruction in reading, and speech/language therapy. He further recommended that the child receive individual psychotherapy to develop a more positive self-image. He recommended that the child's IEP include provision for a reader, a scribe, the use of a calculator, and the testing modification of taking tests in an alternate location. Dr. Popper also recommended that the child be provided with a twelve-month academic program.

        The child's triennial evaluation was performed during the Spring of 1994. On the Kaufman Test of Educational Achievement-Comprehensive Form, the child achieved standard scores of 82 (grade equivalent of 2.3) in reading decoding, 84 (grade equivalent of 2.3) in reading comprehension, 77 (grade equivalent of 2.0) in spelling, 97 (grade equivalent of 3.8) in mathematical computation, and 98 (grade equivalent of 3.7) in mathematical applications. In a social history update, the child's father reported that the child had been unhappy since his enrollment in the special education class for the 3rd grade. A private psychologist who had been treating the child for depression since January, 1994, reported in April, 1994 that the child had been helped by therapy, but remained quite depressed. She suggested that the child might benefit from placement in an alternative school.

        As part of the triennial evaluation, respondent had the child evaluated by a private psychologist, Dr. Tepp. He described the child as slow to respond during the academic testing portion of the evaluation, and depressed during projective testing. Dr. Tepp, who observed the child in his third grade classroom on May 3, 1994, reported that the child exhibited markedly different behavior in class. He described the child as engaged, positive, and interactive, in his classroom. Nevertheless, Dr. Tepp relied upon the projective test results to opine that the child had an underlying depressive disorder, characterized by feelings of hopelessness and inadequacy.

        Dr. Tepp used the Wechsler Individual Achievement Test (WIAT) to assess the child's academic achievement. He reported that the child had achieved standard scores of 83 in basic reading, 82 in reading comprehension, 90 in spelling, 98 in numerical operations, 98 in mathematical reasoning, and 77 in written expression. Dr. Tepp noted that the child's scores on the WIAT were lower than those which he had attained on the Woodcock Johnson when tested by Dr. Popper in March, 1994, but opined that the scores on both tests were consistent with each other. He further opined that the child had made one-half year's progress in reading between April, 1993 and April, 1994, and that his written work evidenced improvement over that of the previous Spring. Dr. Tepp recommended that phonics be used heavily used with the child because of his visual-processing difficulties. He made other recommendations, including the use of a combination of the whole language approach with a basal reader for reading, a modified "scribble writing" technique to help him learn new words, and a daily check-off chart to help the child become organized. Dr. Tepp also opined that there was no evidence that the child required a twelve-month program in order to prevent substantial regression in his skills (See 8 NYCRR 200.6 [j] [1] [v]).

        Petitioners asked Dr. Popper to review the results of the child's triennial evaluation. While Dr. Popper "concurred with" the test scores reported by Dr. Tepp, he did not agree with Dr. Tepp's recommendation that a phonics approach be used with the child, and urged that a multisensory approach be used. Dr. Popper compared the child's standard scores from the Woodcock Johnson Test administered to him in October, 1992 with those reported by Dr. Tepp from the WIAT in April, 1994. According to Dr. Popper, the child's standard scores for basic reading were 95 and 79, respectively, and his standard scores for written expression were 93 and 82, respectively. He asserted that those scores demonstrated that the child had regressed. It should be noted that at the hearing in this proceeding Dr. Popper qualified his opinion by stating that at least there was no improvement in the boy's performance. In his report of May 28, 1994, Dr. Popper again asserted that the child should be placed in an alternate school, on a twelve-month basis.

        In a report dated May 4, 1994, the child's special education teacher reported that the child had mastered consonant blends, long and double vowels, most vowel and consonant digraphs, and some diphthongs. She indicated that the boy was using his knowledge of sounds to decipher multisyllable words, and that his sight word vocabulary had increased to 170 out of 220 words on the Dolch list of words. Noting that at the end of second grade, the child was starting to master addition facts up to 15, his teacher reported that the child had mastered addition and subtraction up to 12, and could do some three-digit addition and subtraction, with regrouping. The teacher reported that the child's writing had improved during the third grade, and that he consistently wrote in cursive. She indicated that the length of the child's written sentences had increased, and that he could write a story consisting of several paragraphs. She noted that the child's self-esteem was improved, but recommended that the CSE consider the need to provide him with counseling. The teacher also reported that the child had begun to take greater responsibility for his class work and homework. She recommended that he remain in a self-contained class for the 1994-95 school year, and that he receive counseling and undergo a speech/language evaluation.

        The CSE conducted its annual review of the child on June 14, 1994. Dr. Popper attended the meeting with petitioners. For the 1994-95 school year, the CSE recommended that the child remain in a self-contained special education class in the Matthew Paterson Elementary School. The recommended class, which was to consist on no more than 15 children was a combined third and fourth grade class. The portion of the child's IEP which was to indicate the extent of his participation in regular education programs was left blank by the CSE, which noted in its minutes that "mainstreamed specials will be explored." Respondent's Director of Pupil Personnel Services testified at the hearing that the CSE had not explicitly recommended that the child be enrolled in specific regular education special subject classes in order to allow her the opportunity to work out the scheduling of those classes with the building principal. The CSE recommended that the child receive small group counseling once per week, for 30 minutes. The child's IEP provided that he was to have extended time limits for tests, and that test questions were to be read to him in an alternate location. The CSE also recommended that the child receive a speech/language evaluation. Although the CSE discussed a twelve-month program for the child, it declined to recommend that program because it believed that the child did not meet the State regulatory criteria for twelve-month programming. The CSE agreed to reconvene in the Summer after the child's speech/language evaluation had been performed.

        During the Summer of 1994, the child attended the Eagle Hill School at petitioner's expense. A speech/language evaluation was performed for the CSE, in July, 1994. The evaluation reported that the child had received scores which were in the average range for expressive and receptive language, as well as listening. The evaluator recommended that speech/language therapy not be provided to the child. On August 16, 1994, the CSE met again with the child's father, who advised the CSE that petitioners had decided to enroll the child in the Eagle Hill School for the 1994-95 school year. He requested that respondent provide transportation to the child. The CSE supported his request.

        The record does not reveal when petitioners requested the hearing in this proceeding. Respondent appointed the hearing officer on or about February 24, 1995. The hearing began on April 20, 1995. The parties agreed that there was no dispute about the child's classification as learning disabled. Petitioners stipulated that they did not challenge the CSE's determination that it would not recommend speech/language therapy for the child during the 1994-95 school year. However, they challenged the appropriateness of the educational program and placement for the child which the CSE had recommended for the 1994-95 school year, and asserted that the Eagle Hill School provided the child with appropriate services during the 1994-95 school year. Petitioners asked the hearing officer to order respondent to reimburse them in the amount of $19,900 for the cost to them of their son's tuition in the Eagle Hill School, the school having given them financial aid in the amount of $4,000. In a post-hearing submission, they clarified their request by noting that a portion of the sum which they initially claimed could not be recovered because it included the cost of the child's lunches and sports equipment. The hearing continued until June 14, 1995.

        The hearing officer rendered his decision on February 11, 1996. He found that the child's IEP which the CSE had prepared adequately identified the child's special education needs, and that the IEP annual goals and short-term instructional objectives were related to, and consistent with, the child's needs and abilities. The hearing officer further found that the special education services which the CSE had recommended for the child were appropriate to address his special education needs, and that the child did not require a twelve-month educational program. With respect to the recommended special education class in the Matthew Paterson Elementary School, the hearing officer found that the child would have been appropriately placed with children having similar needs and abilities. He also rejected petitioners' contention that the recommended placement was too restrictive because it did not provide for sufficient mainstreaming opportunities. The hearing officer noted that the child had not been successful in social studies and science, when he was mainstreamed for those subjects for part of the 1993-94 school year. The hearing officer held that respondent was not obligated to reimburse petitioners for the cost of the child's tuition in the private school because it had offered an appropriate educational program and placement to the child. In addition, he found that petitioner had not demonstrated that the private school had provided appropriate educational services to the child, or that it was the least restrictive environment for him.

        A board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities by the State Education Department (as is the case here) is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four et al. v. Carter by Carter, _____ U.S. _____, 114 S. Ct. 361 [1993]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Matter of Handicapped Child, 22 Ed. Dept. Rep. 487; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Child with a Disability, Appeal No. 93-9). To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits (Bd. of Ed. Hendrick Hudson CSE v. Rowley, 458 U.S. 176 [1982]), and that the recommended program is the least restrictive environment for the child (34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]).

        An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs (Application of a Child with a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 93-12). Petitioners have not challenged the hearing officer's finding that the boy's IEP for the 1994-95 school year accurately identified his special education needs. In any event, I find that the IEP included an extensive description of the results of the child's evaluations, and his levels of performance in reading, mathematics, and written language. The IEP also described the child's social development. His physical needs, including his difficulty with visual scanning and his need to wear glasses, were described. The IEP also described the child's management needs, with regard to his short attention span and distractibility, as well as his difficulty with maintaining and integrating information. The IEP noted that the child needed repetition in instruction, and "checking for understanding," as well as positive and enthusiastic responses to his efforts to perform academically.

        With respect to the IEP's annual goals and short-term instructional objectives, I note that petitioners have not explicitly challenged their appropriateness. However, I have considered the goals and objectives because the central issue in this appeal involves how and where the child could reasonably be expected to make progress towards achieving those goals and objectives. The child's language arts goal was consistent with the child's grade level curriculum, and included objectives for improving the child's visual memory, visual attention to print, his basic reading and decoding skills, his vocabulary, and his written language. A number of objectives related to the child's use of phonics and reading cues, as well as to improving his ability to comprehend, draw inferences and determine sequential order. The IEP annual goal relating to improving the child's mathematical skills was supported by twelve objectives, which included developing his multiplication and division skills, and his ability to solve word problems. The IEP science and social studies were related to the fourth grade curriculum. The IEP study skills annual goal and its objectives were directly related to the child's attention and organizational deficits. The IEP also included two annual goals for the counseling which was to be provided to him. The two goals addressed the child's low self-esteem and frustration with his own academic performance. At the hearing, the child's special education teacher for the 1993-94 school year testified extensively about the extent of the child's mastery of his IEP goals and objectives for the 1993-94 school year, as well as the appropriateness of the child's IEP goals and objectives for the 1994-95 school year. She opined that each goal and objective was appropriate. I find that her opinion is supported by the record.

        Petitioner challenge the CSE's recommendation with respect to the child's placement. They contend that respondent failed to demonstrate that the child's continued placement in a self-contained special education class for the 1994-95 school year would have been appropriate to meet he child's needs, and would have been the least restrictive environment. I must note that the parties made numerous references to the child's program and placement during the 1993-94 school year, although that program and placement were not the subjects of this proceeding. In essence, petitioners, supported by Dr. Popper, asserted that the child had regressed academically and emotionally while in respondent's combined second and third grade special education class, while respondent, supported by Dr. Tepp, argued that the child had progressed academically , and was reasonably content in his self-contained class.

        To the extent that it is relevant in determining the appropriateness of the program and placement recommended for the 1994-95 school year, I find that Dr. Tepp's analysis of the child's standard scores in the 1992 and 1994 evaluations is supported by the record. When the results of the Woodcock Johnson tests administered in both years are considered, the child improved slightly in reading, improved in mathematics, and declined in broad written language. However, there was no evidence presented at the hearing to show that these changes were statistically significant. More to the point, the testimony of the child's teacher, Ms. Truslow, about the child's achievement of various IEP goals and objectives was not refuted. The CSE chairperson and Ms. Truslow each testified that the teacher of the class in which the child would have been enrolled if he had attended respondent's schools during the 1994-95 school year would have used multisensory techniques similar to those which Ms. Truslow successfully used to instruct the child.

        Petitioners contend that the hearing officer erred in finding that petitioners' son would have appropriately grouped for instructional purposes with the children in the recommended special education class for the 1994-95 school year. State regulation requires that the size and composition of each special education class shall be based upon the similarity of the individual needs of the students (8 NYCRR 200.6 [g][2]), and that, with certain exceptions, school districts must provide the parents of children in special education classes with a description of the range of achievement in reading and mathematics and the general levels of social development, physical development and management needs of the children in those classes whenever the range of achievement levels in reading and mathematics exceeds three years (8 NYCRR 200.6 [g][7]). At the hearing, respondent introduced a profile of the abilities and needs of the children in the recommended class (Exhibit 36). The profile revealed that petitioners' son and the children in the recommended class had comparable cognitive abilities, social development, physical development, and management needs. Ms. Truslow testified that five of the child's classmates from the 1993-94 school year were in the recommended class, and opined that the child would be appropriately grouped for instruction with the children in the recommended class. Petitioners, through their attorney, pointed out that two of the proposed classmates had grade equivalent reading skills of 5.7, while their son's broad reading skills were at a 2.3 grade equivalent, i.e., more than three years below the other two children. Respondent's Director of Pupil Personnel Services testified that she believed that one of the two children had been mainstreamed for reading, and that the children in the recommended class were divided into smaller groups for instructional purposes. Upon the record before me, I find that respondent has demonstrated that the child would have been appropriately grouped for instructional purposes in the recommended class.

        Petitioners also challenge the child's IEP on the ground that it did not provide for his instruction in the least restrictive environment. Federal and State regulations require that each child's IEP indicate the extent to which the child will participate in regular education programs (34 CFR 300.346 [a][3]; 8 NYCRR 200.4 [c][2][iv]). The CSE failed to discharge its obligation to do so, in this instance. It cannot delegate its responsibility to determine the extent of the child's participation in regular education to anyone (Application of a Child with a Disability, Appeal No. 93-12). I note that Dr. Tepp, who testified on behalf of respondent, could offer no reason why the child could not have been mainstreamed for lunch, recess, physical education, and music. I further note that the child was apparently successful in mainstreamed art during part of the 1993-94 school year. Nevertheless, Ms. Truslow testified about the child's initial difficulty in adjusting to her class, and the progress which the child had made in even initiating conversations with peers. Upon the record before me, I find that there was some basis for proceeding cautiously with exposing the child to mainstreaming at the beginning of the 1994-95 school year. However, the CSE should have indicated in the child's IEP that it would reconvene within a specified period after the start of the 1994-95 school year to complete the child's IEP with respect to his participation in respondent's regular education program. Since the child did not attend respondent's schools during the 1994-95 school year, the matter became moot. Upon the record before me, I find, as did the hearing officer, that respondent has met its burden of proving that it offered the child an appropriate program.

 

        THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
May 30, 1996 FRANK MUŅOZ